The opinion of the court was delivered by: HERMAN
At issue before this court is the government's request that Amerigo Ferranti be held in contempt for failure to answer questions before a federal grand jury.
Ferranti is a beer distributor doing business in Scranton, Pennsylvania. On March 15, 1973, two attorneys attached to the Antitrust Division, Middle Atlantic Division, Department of Justice, visited Ferranti at his office. The discussion lasted approximately one hour, after which the attorneys departed. Mr. Ferranti signed no written statement, nor was he apparently asked to do so.
Subsequently, Ferranti was subpoenaed to appear before a federal grand jury in Harrisburg investigating possible violations of federal antitrust laws with regard to the beer industry in his business locale. Mr. Ferranti declined to answer questions by counsel for the government and by the foreman, standing on his Fifth Amendment right against self-incrimination. Thereafter, upon application of the United States, the court granted Ferranti use immunity pursuant to 18 U.S.C. § 6003.
Ferranti was returned to the grand jury and again refused to testify. As a result of Ferranti's refusals, the government has moved for a finding of contempt under 28 U.S.C. § 1826.
Section 1826 provides for punishment for a recalcitrant witness.
Counsel for Ferranti alleges the following arguments on behalf of his client:
1. That 18 U.S.C. § 6003 is unconstitutional requiring the convening of a three-judge panel to enjoin its application;
2. The March 15 interview violated Ferranti's Fifth and Sixth Amendment rights;
3. That as a result of the alleged violations of Ferranti's constitutional rights, any grand jury testimony would be "tainted" and may not be used at all by the government.
The court cannot agree with these arguments.
The witness requests a temporary restraining order staying the grant of immunity or any citation of contempt for refusal to answer grand jury questions. The remedies sought by Ferranti require a motion to convene a three-judge court.
The question of a three-judge panel must be dispensed with concomitantly with the issue of the constitutionality of 18 U.S.C. § 6003. In order to convene a three-judge court it must be clear that the moving party has raised a "substantial" constitutional question. Ex parte Poresky, 290 U.S. 30, 54 S. Ct. 3, 78 L. Ed. 152 (1933); Utica Mutual Ins. Co. v. Vincent, 375 F.2d 129 (2d Cir. 1967); Mellinger v. Laird, 339 F. Supp. 434 (E.D. Pa. 1972); O'Hair v. United States, 281 F. Supp. 815 (D.C. 1968); Harlan v. Pa. R.R., 180 F. Supp. 725 (W.D. Pa. 1960).
A lack of a "substantial" constitutional argument is generally said to appear where its unsoundness clearly results from previous Supreme Court decisions or where it is obviously without merit. California Water Service Co. v. City of Redding, 304 U.S. 252, 58 S. Ct. 865, 82 L. Ed. 1323 (1938); Herald Co. v. Harper, 410 F.2d 125 (8th Cir. 1969).
The issue is not whether this court considers § 6003 to be constitutional, but whether the attack upon it is substantial. If this court concludes that the witness's constitutional arguments are insubstantial we must dismiss the petition for injunctive relief. Herald Co. v. Harper, supra; Stix Friedman & Co. v. Coyle, 340 F. Supp. 4, 6 (E.D. Mo. 1972).
The thrust of Ferranti's attack on 18 U.S.C. § 6003 is essentially that it eliminates Fifth Amendment rights without due process of law.
The petitioner concedes, in the face of Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972), that use immunity is coextensive with the scope of the Fifth Amendment privilege against self-incrimination and therefore sufficient to compel testimony over such a claimed privilege.
Petitioner contends, however, that the statute allows a non-judicial functionary (i.e., the United States Attorney) to automatically gain immunity without probable cause and thereafter violate the witness's right "to be let alone." Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 84 S. Ct. 1594, 12 L. Ed. 2d 678 (1964). Moreover, according to the petitioner, the witness's right of privacy is violated since the statute countenances "a governmental invasion of the most secret and intimate reaches of an individual's mind."
This court sees glaring defects in the attack on § 6003 which irreparably deprive it of the needed substantiality. The assertion of a right "to be let alone" is no more than an oblique attempt to destroy the entire concept of immunity. The Supreme Court has consistently concluded that there is no constitutional right to invoke the Fifth Amendment where immunity has been granted. Kastigar, supra; Ullmann v. United States, 350 U.S. 422, 76 S. Ct. 497, 100 L. Ed. 511 (1956); Blair v. United States, 250 U.S. 273, 39 S. Ct. 468, 63 L. Ed. 979 (1919). To provide a flat right to witnesses granted immunity to assert a right of privacy would totally cripple even the broadest of transactional immunity.
"[Some] confidential matters are shielded from considerations of policy, and perhaps in other cases for special reasons a witness may be ...